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The Law Officers: a Constitutional and Functional Overview

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The Law Officers: a Constitutional and Functional Overview BRIEFING PAPER Number 08919, 28 May 2020 The Law Officers: a By Conor McCormick (Queen's University Belfast) and Graeme Constitutional and Cowie (HoC Library) Functional Overview Contents: 1. Overview 2. England and Wales 3. Scotland 4. Northern Ireland 5. Political independence 6. Law officers’ legal advice 7. Devolution issues Annex: Law Officers timeline www.parliament.uk/commons-library | intranet.parliament.uk/commons-library | [email protected] | @commonslibrary 2 The Law Officers: a Constitutional and Functional Overview Contents Summary 3 1. Overview 4 1.1 What is a law officer? 4 1.2 How many law officers are there? 4 1.3 What do law officers do? 5 1.4 What relationship do law officers have with Government? 5 1.5 Are law officers Parliamentarians? 6 2. England and Wales 10 2.1 Attorney General for England and Wales 10 2.2 Solicitor General for England and Wales 21 2.3 Counsel General for Wales (from 2007) 22 3. Scotland 28 3.1 Lord Advocate 28 3.2 Solicitor General for Scotland 33 3.3 Advocate General for Scotland (from 1999) 34 4. Northern Ireland 39 4.1 Attorney General for Northern Ireland 39 4.2 Advocate General for Northern Ireland (from 2010) 46 5. Political independence 48 5.1 Relationship with Cabinet 48 5.2 Independence and prosecutorial functions 50 6. Law officers’ legal advice 51 6.1 Law officers’ convention 51 6.2 Notable examples of law officers’ advice/opinion 51 7. Devolution issues 56 7.1 What is a “devolution issue”? 56 7.2 Why do devolution issues matter for the law officers? 56 7.3 What powers do the law officers have? 57 Annex: Law Officers timeline 58 Contributing Authors: The Library would like to thank Dr. Conor McCormick of Queen's University Belfast for his invaluable expertise and assistance with this paper. Comments and questions about the paper should be directed to Graeme Cowie. Cover page image copyright: Rt Hon Suella Braverman MP – Licensed under CC BY 3.0; Rt Hon Lord Keen of Elie QC – Licensed under Open Government Licence v3.0; John Larkin QC – Licensed under Crown Copyright; Jeremy Miles AM – Licensed under CC BY 2.0; James Wolffe QC – Licensed under CC BY 3.0 3 Commons Library Briefing, 28 May 2020 Summary What are law officers? Law officers are senior legal advisors to the UK Government, Scottish Government, Welsh Government and Northern Ireland Executive. Who are the law officers? The UK Government has four law officer posts. These are the: • Attorney General for England and Wales (AGEW) • Solicitor General for England and Wales (SGEW) • Advocate General for Scotland (AGS) • Advocate General for Northern Ireland (AGNI-UK)1 The Scottish Government has two law officers, the Lord Advocate (LA) and the Solicitor General for Scotland (SGS). The Welsh Government and Northern Ireland Executive each have one law officer: respectively the Counsel General for Wales (CGW) and the Attorney General for Northern Ireland (AGNI). What do law officers do? Law officers’ functions vary significantly and depend on the historical and constitutional context of their posts. They typically carry out a range of advisory, litigatory and executive functions, including: • oversight of the relevant jurisdiction’s prosecution services; • oversight of other government legal services; • representing the relevant government or executive in litigation; • specific statutory powers and duties, especially in relation to the devolution settlements; • advising Cabinet and individual Ministers on legal matters; and/or • advising the relevant legislature or the Monarch on legal matters. Are law officers independent? The nature of the work that law officers do is different from other Ministers. With the exception of the Attorney General for Northern Ireland, there is no legal bar to a law officer being a parliamentarian or otherwise politically active. However, some of their work calls for a degree of independence or separation from Government and party politics. 1 This post is held concurrently with that of Attorney General for England and Wales 4 The Law Officers: a Constitutional and Functional Overview 1. Overview 1.1 What is a law officer? The term “law officer” is used in the United Kingdom to describe a type of legal advisor to the UK Government, Scottish Government, Welsh Government, or Northern Ireland Executive. Law officers exercise a combination of what might be seen as “legal” and “political” functions as part of the same role, and those functions call for varying degrees of independence and partisanship depending on the context. 1.2 How many law officers are there? There are currently eight distinct law officers. Of those, two are and must be held by the same person (the Attorney General for England and Wales and the Advocate General for Northern Ireland).2 Since 1999, three new law offices have been created, and some of the functions of three existing law offices have been transferred to a devolved executive. Care should therefore be taken when comparing the roles of the respective law officers over time. For an overview of when each set of changes happened and how each change structurally affected the law officers regime, see the Annex to this paper. Box 1: Law Officers of the United Kingdom There are eight distinct positions of law officer in the United Kingdom’s current constitutional arrangements. Of those, four are appointed by and accountable to the UK Government, whereas the other four are appointed in connection with the devolution settlements and advise and are accountable to devolved institutions. UK Government Law Officers • Attorney General for England and Wales or AGEW (currently Suella Braverman MP QC) • Solicitor General for England and Wales or SGEW (currently Michael Ellis MP QC) • Advocate General for Scotland or AGS (currently Lord Keen of Elie QC) • Advocate General for Northern Ireland or AGNI-UK (currently Suella Braverman MP QC) Scottish Government Law Officers • Lord Advocate or LA (currently James Wolffe QC) • Solicitor General for Scotland or SGS (currently Alison Di Rollo QC) Welsh Government Law Officer • Counsel General for Wales or CGW (currently Jeremy Miles AM) Northern Ireland Executive Law Officer • Attorney General for Northern Ireland or AGNI (currently John Larkin QC) 2 Between 1972 and 2010 the post of Attorney General for Northern Ireland was instead held simultaneously by the Attorney General for England and Wales. 5 Commons Library Briefing, 28 May 2020 1.3 What do law officers do? The precise functions of the law officers vary significantly and depend on the constitutional and historical context of their respective posts. The UK has three distinct legal systems (those of England and Wales, of Scotland, and of Northern Ireland) and the extent to which certain functions are devolved or reserved is not uniform. Broadly speaking, however, law officers each carry out a range of different functions. These functions include: • oversight of (the relevant) jurisdiction’s prosecution services; • oversight of other government legal services; • representing the relevant government or executive in litigation; • specific statutory powers and duties, especially in relation to the devolution settlements; • advising the Monarch on certain legal matters; • advising Cabinet and individual Ministers on legal matters; and/or • advising the relevant legislature on certain legal matters. 1.4 What relationship do law officers have with Government? One of the areas of greatest inconsistency throughout the UK’s law officer regime is the relationship between individual law officers and the Government of the day. This depends to a significant extent on convention and political practice, rather than legal constraints. Relationship with the Cabinet Although most law officers are members of their respective Governments or Executives, none of them are, as such, members of their respective political Cabinets. However, senior law officers are invited to attend meetings of the political Cabinet or Executive in connection with their duties, whenever it is thought necessary or desirable. Practice varies by administration and business need. Party-political or independent UK Government law officers The UK Government’s law officers have invariably been party-political appointments. Because of this, the posts typically have been filled by: • parliamentarians of the governing party/parties of the day; or • senior lawyers (usually) politically sympathetic to the governing party/parties of the day. The notable exceptions to this rule of thumb are from 1924 and 1931. When forming the 1924 minority Labour Government and the 1931 National Government, Ramsay Macdonald recruited law officers from beyond the existing Parliamentary Labour Party (and in 1924 from beyond Parliament itself). 6 The Law Officers: a Constitutional and Functional Overview Devolved law officers in Scotland Following the transfer of functions of the Lord Advocate to the devolved institutions in Scotland in 1999, the position has never been held by a sitting member of the Scottish Parliament. The original Lord Advocate, Lord Hardie, continued to take the Labour whip in the House of Lords. His immediate successor, who subsequently became Lord Boyd of Duncansby, sat initially as a crossbencher, only taking the Labour whip (four months later) after stepping down as Lord Advocate. Thereafter, no Lord Advocate or Solicitor General for Scotland has been a sitting member of any UK legislature or declared publicly a party- political affiliation while in office. Devolved law officer in Wales Since the post’s creation, the Counsel General for Wales has, with only one exception, always been filled as an explicit party-political appointment by a Member of the Welsh legislature. Between May 2011 and May 2016, Theodore Huckle QC served the Labour Government as Counsel General while remaining formally independent of party allegiance. Uniquely, he also had not been elected as an Assembly Member. Devolved law officer in Northern Ireland Since the transfer of justice powers to the Northern Ireland Assembly in 2010, the post of Attorney General for Northern Ireland has been held on a non-party basis.
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